Court of Appeals of Indiana | Opinion 02A03

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A TTORNEY S FOR A PPELLANT S Patrick R. Hess Brian C. Heck Fort Wayne, Indiana
Robert W. Eherenman Andrew L. Teel Fort Wayne, Indiana A TTORNEY S FOR A PPELLEE S Cathleen M. Shrader Michael H. Michmerhuizen Fort Wayne, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Allen County Plan Commission , et al. Appellant s - Respondents

,

v. 

### Olde Canal Place Association , et al. Appellee s - P etitioners

. October 11, 2016 Court of Appeals Ca se No. 02A03

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- 441 Appeal from the Allen Superior Court The Honorable Stanley A. Levine, Judge Trial Co urt Cause No. 02D03

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A ltice , Judge
.

Case Summary

[1] MRK II, LLC and Max R. Kendall (collectively, MRK) and t he Allen County Plan Commission (the Commission) appeal from the trial court’s order grantingCourt of Appeals of Indiana | Opinion 02A03

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Old e Canal Place Association and its members 1 (collectively, OCPA ) relief from judgment under Ind

. Trial Rule 60(B)(1). On appeal, MRK and the Commission argue that the trial court abused its discre tion in granting relief because OCPA cannot establish a meritorious claim as required by T.R. 60(B)(1).

[2] W e reverse and remand with instructions.

Facts & Procedural History

[3] On June 4, 2014, MRK filed a petition to rezone a parcel of pr operty located in Allen County from C2/Limited to Commercial to R3/Multiple Family Residential. At the same time, MRK also filed an application for approval of a primary development plan for the construction of a multi

- family resi dential complex on the p r operty . In conjunction with the development plan, MRK requested waivers of three applicable design and development standards, including the maximum height standard for prima ry buildings in an R3 district. The Commission held a public hearing on MRK’s ap plications on July 10, 2014, at which OCPA appeared in opposition . On July 17, 2014, the Commission approved MRK’s applications.

1 These members comprise Physicians Health Plan of Northern Indiana, Inc., Thunderbolt Development, LLC, Indiana Wesleyan University (Marion College), Summit Hotel Properties, LLC, BSA Properties, LLC, and Anthony Wayne Area Council, Inc.Court of Appeals of Indiana | Opinion 02A03

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[4] On August 18, 2014, OCPA filed a petition for judicial review challenging the Commission’ s decision. On September 16, 20 14, OCPA filed a motion for extension of time to file the record of the proceedings before the Commission (the Record) . The same day, the trial court granted the motion and extended the filing deadline to November 17, 2014. The November 17 deadline passe d without OCPA filing the Record or requesting another extension of time.

[5] On November 21, 2014, MRK filed a motion to dismiss due to OCPA ’s fai lure to timely file the R ecord. OCPA filed the R ecord on November 25, 2014 , and MRK responded by filing a motion to strike. On December 8, 2014, OCPA filed their response to MRK’s motion to d ismiss, which also contained an alternative motion to set aside any prospective dismissal pursuant to T.R. 60(B)(1). At the same time, OCPA filed the affidavit of Robert Westf all, one of its attorneys. In the affidavit, Attorney Westfall explained that he “mistakenly thought that because the . . . Commission would be preparing the Record internally, it would also file same with the court.” 2 Appellant’s Appendix at 89.

[6] On Dece mber 11, 2014, the trial court held a hearing on MRK’s motion to dismiss. At the hearing, counsel for OCPA conceded that under existing case

2 Because the Commission and MRK do not challenge the trial court’s finding that the failure to timely file the Record was the result of mistake, surprise, or excusable neglect, we need not detail the communications between the attorneys that contributed to Attorney Westfall’s misunderstanding. For our purposes, it suffices to note that OCPA does not suggest that counsel for the Commission acted in bad faith or intentionally misled Attorney Westfall in any way

. See Appellant’s Appendix at 15, n.2 (explaining that OCPA “does not mean to suggest that counsel for the . . . Commission, a respected member of the Bar, did anything wrong or untoward”).Court of Appeals of Indiana | Opinion 02A03

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law, the trial court was required to dismiss the petition for judicial review due to the failure to timely file th e Record , which the trial court did. After the dismissal, however, OCPA asked the trial court to set aside the dismissal under T.R. 60(B)(1). Specifically, OCPA argued that the failure to timely file the agency record was the result of mistake, and that OCPA had a meritorious claim because it believed the Commission’s decision was arbitrary, capricious, and not supported by substantial evidence. MRK opposed the request, arguing that even if the dismissal was set aside, the case would have to be dismissed again because the trial court cannot accept a belatedly filed Record

. Nevertheless, the trial court granted the motion to set aside the dismissal, and MRK renewed its motion to strike the Record . The trial court directed MRK to file an amended motion to strike within a week of the hearing. Instead of doing

so , MRK filed its notice of appeal four days later. 3 This appeal ensued.

Discussion & Decision

[7] In their joint brief, MRK and the Commission argue that the trial court abused its discretion by granting OCPA ’s T.R. 60(B) motion for relief from judgment.
T.R. 60(B) provides a mechanism by which a party may obtain relief from the entry of a final judgment. Laflamme v. Goodwin , 911 N.E.2d 660 , 664 (Ind. Ct. App. 2009). “A motion made under T.R. 6 0(B) is addressed to the equitable

3 We are unpersuaded by OCPA’s argument that this appeal is somehow premature because MRK did not file an amended motion to strike the Record as directed by the trial court. T.R. 60(C) provides that rulings granting or denying relief under T.R. 60(B) are fi nal and appealable. Accordingly, this appeal is properly before us.Court of Appeals of Indiana | Opinion 02A03

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discretion of the trial court, and we will reverse only upon an abuse of that discretion.” Brimhall v. Brewster , 864 N.E.2d 1148, 1152

- 53 (Ind. Ct. App. 2007), trans. denied . An abuse of discretion occurs when the judgm ent is clearly against the logic and effect of the facts and inferences supporting the judgment. Breneman v. Slusher , 768 N.E.2d 451 , 461 (Ind. Ct. App. 2002), trans. denied

. The movant bears the burden of establishing grounds for relief under T.R. 60(B)

. Brimhall , 864 N.E.2d at 1153

.

[8] The trial court granted OCPA ’s motion for relief from judgment pursuant to T.R. 60(B)(1), which provides that a trial court may relieve a party from a judgment where the party establishes “mistake, surprise, or excusa ble

ne glect[,] ” provided that the party files its motion within one year of the entry of judgment and alleges a meritorious claim or defense. Huntington Nat. Bank v.
Car

- X Assoc. Corp. , 39 N.E.3d 652, 655 (Ind. 2015). To establish a meritorious claim or defense, a movant must show “that vacating the judgment will not be an empty exercise.” Welton v. Midland Funding, LLC , 17 N.E.3d 353, 355 (Ind. Ct. App. 2014) (quoting Outback Steakhouse of Florida, Inc. v. Markley , 856 N.E.2d 65, 73 (Ind. 2006)).

[9] OCPA ’s motion for relief from judgment was filed well within the one

- year timeframe applicable to T.R. 60(B)(1) motions , and MRK and the Commission do not challeng e the trial court’s finding that the failure to timely file the RecordCourt of Appeals of Indiana | Opinion 02A03

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was the result of mis take, surprise, or excusable neglect. 4 Instead, they argue that OCPA is unable to establish a meritorious claim because it cannot belatedly file the Record, and under the bright

- line rule set forth in First Am. Title Ins. Co. v. Robertson , 19 N.E.3d 757 ( Ind. 2014) , amended on reh’g , 27 N.E.3d 768, and Teaching Our Posterity Success, Inc. v. Ind. Dep’t of Educ. , 20 N.E.3d 149 (Ind. 2014) [hereinafter TOPS ], the absence of the Record automatically results in the dismissal of OCPA’s petition for judicial rev iew. 5 Thus, according to MRK and the Commission, vacating the the dismissal of OCPA’s petitio n was an empty exercise because OCPA cannot cure the deficiency that resulted in that dismissal. We agree.

[10] Indiana Code sections 37

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- 1600 through

- 16 16, known as the 1600 Series, “establishes the exclusive means for judicial review of zoning decisions[.]” Ind. Code § 36

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- 1601(a). The provision of the 1600 Series relevant to the case before us provides that “[w] ithin thirty (30) days after the fili ng of the petition, or within further time allowed by the court, the petitioner shall transmit to the court the original or a certified copy of the board record for judicial review of

4 In their appellants’ brief, MRK and the Commission expressly state that they “are not challenging whether the untimely Record was the result of mistake, surprise, or excusable n eglect.” Appellant’s Brief at 12. In their reply brief, however, they argue that OCPA’s mistake was one of law, not fact, rendering T.R. 60(B)(1) inapplicable. We confine our analysis to whether OCPA established a meritorious claim as required by T.R. 6 0(B)(1).
5 MRK and the Commission also argue that the bright

- line rule set forth in Robertson and TOPS renders T.R. 60(B) (1) inapplicable in cases where a petit ioner for judicial review of an administrative decision fails to timely file the record of the administrative proceedings , and that the trial court therefore abused its discretion by even considering OCPA’s motion for relief from judgment. We do not address this argument because even assuming arguendo that T.R. 60(B)(1) is applicable, we conclude that a party who fails to timely file the record cannot establish a meritorious claim

.Court of Appeals of Indiana | Opinion 02A03

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the zoning decision [.]” I.C. § 36

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- 1613 (a ) . This section further provides that “[f] ailure to file the record within the time permitted by this subsection, including any extension period ordered by the court, is cause for dismissal of the petition for review by the court, on its own motion, or on petition of any party of record to the proceeding. ” I.C. § 36

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- 1613(b)

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[11] In Robertson and TOPS , our Supreme Court interpreted identical language appearing in the A dministrative Orders and Procedures Act (A OPA ) 6 and set forth a bright

- line rule. Specifi cally, the Court held that the statutory language makes dismissal mandatory when the agency record is not timely filed. TOPS , 20 N.E.3d at 155 (holding that “a petitioner for review cannot receive consideration of its petition where the statutorily

- define d agency record has not been filed” ); Robertson , 19 N.E.3d a t 762

- 63 ( same ). Additionally, in TOPS , the Court reaffirmed its prior holding that “the relevant provisions of AOPA do not permit untimely filing of the agency record or nunc pro tunc extensions of the filing deadline.” TOPS , 20 N.E.3d at 153 (quoting Ind. Family & Social Servs. Admin. v. Meyer

, 927 N.E.2d 367, 372 (Ind. 2010)).

6 This court has observed that “[w]hen the General Assembly amended the Zoning Enabling Act in 2011, it brought the judicial review concepts from the [AOPA] into th e zoning arena. ” Dunmoyer v. Wells Cnty., Ind. Area Plan Comm’n , 32 N.E.3d 785, 786 n.9 (Ind. Ct. App. 2015). Accordingly, the judicial review provisions applicable to zoning decisions “are interpreted in the same manner as the relevant p rovisions of the AOPA and rely on case law established under the AOPA.” Id. The parties agree that the rules set forth in TOPS and Robertson apply with equal force in zoning matters

. See Town of Pittsboro Advisory Plan Comm’n v. Ark Park, LLC , 26 N.E.3d 110, 117

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[12] The parties all agree that the trial court was required to dismiss OCPA’s petition for judicial review unde r the bright

- line rule set forth in TOPS and Robertson

. OCPA, however, a sserts that the dismissal was properly set aside pursuant to T.R. 60(B)(1), while MRK and the Commission argue that such relief was improper because OCPA cannot establish a meritoriou s claim

. In support of their argument that setting aside that dismissal was an empty exercise, MRK and the Commission direct our attention to Welton , which involved the collection of an unpaid credit card debt. 17 N.E.3d at 354. In that case, summary ju dgment was granted in the creditor’s favor after Welton failed to file a response. Shortly thereafter, Welton filed a T.R. 60(B)(1) motion for relief from judgment, arguing that the failure to file a timely response was due to excusable neglect because he r attorney had incorrectly calendared the response date. As for a meritorious defense, Welton asserted that the underlying debt had already been paid. The trial court denied Welton’s motion, and this court affirmed. In reaching its conclusion, this cou rt recognized that a “ bright

- line rule ” precludes the late filing of responses in opposition to a motion for summary judgment. Id. at 355. Accordingly,
[e]ven if Welton ’ s motion for relief from judgment had been granted, Welton would not have been permi tted to belatedly respond or designate ev idence in opposition to Midland’ s motion for summary judgment. Without a response, it is hard to imagine how the outcome of the summary judgment proceedings would have been different. Because vacating the judgment would have been an empty exercise, Welton has not shown she has a meritorious defense to Midland’ s motion for summary judgment.Court of Appeals of Indiana | Opinion 02A03

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Id. at 356.

[13] We find Welton instructive. Because OCPA is not permitted to belatedly f ile the
R ecord, the R ecord is not, and wil l never be, properly before the trial court. Without t he R ecord, OCPA’s petition cannot be considered

. See TOPS , 20 N.E.3d at 155 ; Robertson , 19 N.E.3d at 762

- 63. The trial court’s order setting aside the dismissal of OCPA’s petition was therefore an empty exercise. Because OCPA cannot establish a meritorious claim , the trial court abused its discretion in granting the motion for relief from j udgment. We therefore

reverse and remand with instructions to vacate the trial court’s judgment setting

a side its dismissal of OCPA’s petition for judicial review

.

[14] Judgment reversed and remanded with instructions

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[15] Bailey, J. and Brown, J., concur.